City Wins Right To U.S. Data On Firearms

By WILLIAM GLABERSON

Published: May 21, 2004

New York City won a significant victory this week in its civil suit against the firearms industry, winning the right to information that could help prove its claim that the industry closes its eyes to the way guns get into the hands of criminals.

On Wednesday, a federal magistrate ruled that the city was entitled to federal data that traces the path of guns used in crimes, overruling objections by the Justice Department. Lawyers say that without the data the city would have difficulty proving its claim that the gun industry's marketing and distribution practices amount to a public nuisance.

The ruling by Magistrate Judge Cheryl L. Pollak, in Federal Court in Brooklyn, waded into a contentious legal and political issue over the Bush administration's reluctance to release the tracing data, which is likely to be helpful to civil suits against the industry around the country. Access to the data has provoked battles in Congress and in the United States Supreme Court, with the gun industry and its opponents squaring off over whether it should be released.

In 2003 and again this year, the Republican-controlled Congress enacted appropriations measures saying that no funds could be used to release the tracing data. Some supporters said the information could undermine police investigations, while industry opponents said groups like the National Rifle Association had slipped the measure in, to hobble the civil suits against the gun industry.

A Justice Department lawyer suggested during arguments in the city's case that the department, under Attorney General John Ashcroft, had changed a government policy that permitted the limited release of the information in an earlier lawsuit.

The lead lawyer on the case at the city's Law Department, Eric Proshansky, said yesterday that the data would enable the city to prove that gun makers have failed to protect the public.

Judge Pollak's decision, Mr. Proshansky said, ''is important to the city because the proof in these suits is developed by demonstrating through these databases that the gun industry knows about problems in the distribution networks'' that end in sales of guns to criminals.

A similar battle over a demand for the same information from the City of Chicago is being fought in the courts.

The data from the Bureau of Alcohol, Tobacco and Firearms includes the sales history of guns that law enforcement agencies seek to trace. Many of those tracing requests are begun after guns are found in crime investigations. Taken together, the traces can provide a roadmap showing, for example, that some dealers can be identified as tied more often to guns used in crime than others.

Sheree Mixell, the spokeswoman for the bureau, which fought the release of the information, said lawyers were reviewing the decision but the agency would not comment on pending litigation. But other lawyers said they thought it likely that the bureau would appeal, first to the United States district judge handling the city's case, Jack B. Weinstein, and then possibly to an appeals court.

In a lawsuit by the National Association for the Advancement of Colored Peoplethat raised claims similar to those in the city's suit, the bureau agreed to release some of the information in 2002. Under that agreement, the access to the information was strictly limited and the information could not be used in any other suit.

The N.A.A.C.P. suit failed. But in a decision last year Judge Weinstein seemed to indicate that the city's suit might have a better chance at success.

Some law enforcement officials have been highly critical of the release of the gun-tracing information, saying it is intended for law enforcement purposes and that its release could compromise investigations by showing which cases police agencies are pursuing.

In a letter to Mr. Ashcroft in 2002, the New York police commissioner, Raymond W. Kelly, took a position that undercut the argument of the city's civil lawyers in the case against the gun industry. Mr. Kelly said release of the information would ''compromise critical law enforcement investigations and endanger the lives of police officers and members of the public.''

Backed by the gun industry, the bureau's lawyers argued in the city's case that the appropriations measures barred the bureau from releasing the information.

In her decision Judge Pollak disagreed, saying that the bureau was required to turn over the data under a city subpoena. The city had agreed that the data would not be distributed outside the case. ''Congress,'' she wrote, ''did not intend to restrict civil litigants from receiving firearms data pursuant to judicial subpoena.''

In a filing in the case, Mr. Proshansky cited remarks made by a federal lawyer at a hearing last month suggesting that the government's policy had changed under Mr. Ashcroft.

The lawyer, Barry Orlow, deputy associate chief counsel of the bureau, had noted that the firearms bureau was transferred from the Treasury Department to the Justice Department during the government's Homeland Security reorganization in 2003.

''We don't work for the secretary of the Treasury anymore, we work for the attorney general,'' Mr. Orlow said, adding that ''policy considerations have changed.''